Basin Elec. Power Co-op. v. State Bd. of Control

• Decision Date: 20 April 1978
• Docket Number: Nos. 4791,4817,s. 4791
• Citation: 578 P.2d 557
• Parties: Appeal of Basin Electric Power Cooperative from the Order of the State Board of Control in the Matter of the Petition of Basin Electric Power Cooperative for Change in Three Appropriations Diverting Water from the Laramie River through the Boughton Ditch, etc. BASIN ELECTRIC POWER COOPERATIVE, Appellant, v. STATE BOARD OF CONTROL, Middle Laramie Water Users Association, Upper Laramie Users, Inc. and Wheatland Irrigation District, Appellees. WHEATLAND IRRIGATION DISTRICT and Middle Laramie Water Users Association, Appellants, v. STATE BOARD OF CONTROL, Basin Electric Power Cooperative and Upper Laramie Users, Inc., Appellees.
• Court: Wyoming Supreme Court

Page 557

578 P.2d 557

Appeal of Basin Electric Power Cooperative from the Order of the State Board of Control in the Matter of the Petition of Basin Electric Power Cooperative for Change in Three Appropriations Diverting Water from the Laramie River through the Boughton Ditch, etc.

BASIN ELECTRIC POWER COOPERATIVE, Appellant, v. STATE BOARD OF CONTROL, Middle Laramie Water Users Association, Upper Laramie Users, Inc. and Wheatland Irrigation District, Appellees.

WHEATLAND IRRIGATION DISTRICT and Middle Laramie Water Users Association, Appellants, v. STATE BOARD OF CONTROL, Basin Electric Power Cooperative and Upper Laramie Users, Inc., Appellees.

Nos. 4791, 4817.

Supreme Court of Wyoming.

April 20, 1978.

Rehearings Denied May 25, 1978.

D. N. Sherard and R. A. Stacy, Wheatland, for Basin Elec. Power Co-op.

V. Frank Mendicino, Atty. Gen., and Jack D. Palma, II, Asst. Atty. Gen., Cheyenne, for State Bd. of Control.

John J. Rooney and Paul J. Hickey of Rooney, Horiskey, Bagley & Hickey, Cheyenne, for Middle Laramie Water Users Ass'n.

William R. Jones of Jones, Jones, Vines & Hunkins, Wheatland, for Wheatland Irrigation Dist.

George J. Millett, Laramie, for Upper Laramie Users, Inc.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

These consolidated appeals primarily concern the State Board of Control's decision not to grant the Basin Electric Power Cooperative the right to transfer certain historic closed-basin return flows, as requested in Basin's petition to change the use and point of diversion under certain acquired water appropriations. Basin's petition, filed pursuant to § 41-3-104, W.S.1977 (§ 41-4.1, W.S.1957, 1975 Cum.Supp.), ¹ was contested by the Upper Laramie Users, Inc., the Wheatland Irrigation District (an organization then denominated as the Laramie River Water Users), the Middle Laramie Water Users Association, and certain other interested parties. After hearings in May and July, 1975, the Board granted Basin's petition and entered findings of fact and conclusions of law on May 6, 1976. Basin took exception to certain of these findings and conclusions, and timely filed a petition for review. The Wheatland Irrigation District filed its own petition for review on July 23, 1976, which was later stricken by the district court for a failure to comply with the Wyoming Rules of Civil Procedure. The Middle Laramie Water Users Association did not file a petition for review. On January 25, 1977, the district court entered its order affirming the decision of the Board of Control. Basin has appealed only from that portion of the order which concerns the above-mentioned closed-basin return flows. The various water users associations have appealed from the district court's restriction of the issues reviewed below, and various determinations of the Board which they claim were not in conformity with the law or supported by substantial evidence.

We will affirm the district court's affirmation of the Board's decision with respect to the handling of closed-basin return flows. There being no other issues properly before us, we will affirm all other aspects of the district court's order upholding the Board's decision.

Basin's petition to the Board of Control requested that three water appropriations, which it has acquired, be changed from agricultural uses to a preferred use for industrial purposes so that it would have A unique factual situation is present in that a topographic divide separates the 3,730 acres historically irrigated under the Boughton Ditch. The total record rights of the appropriations under consideration are for 98.73 cubic feet per second of water, covering 7,388 acres. Basin admitted in its report to the Board that only

water to service its steam power generation requirements at its Laramie River Station near Wheatland, Wyoming. The appropriations in question are from the Laramie River, through the Boughton Ditch, and have historically been used for the irrigation of meadow lands located on the R. O. Corporation and Wallis Ranches, east of U. S. Highway No. 30 and north of State Highway No. 34, in Albany County. Basin's plan is to sever these water rights from the above lands and transport the water down the Laramie River for storage at the proposed Grayrocks Reservoir, there to be utilized at its power facility.

"approximately 35% of the acreage entitled to irrigation water under the Boughton Ditch appropriations has been considered as actually irrigated."

Of the total acreage actually irrigated, 794 acres lie above and 2,937 acres lie below the topographic divide.

Above the divide, irrigation return flows are able to find their way back to the Laramie River for use by other appropriators. Below the divide, however, the irrigation return flows enter the Long Lake Basin, a geological enclosure which precludes the return of any waters to the Laramie River for use by other appropriators. The record discloses that, as defined by the Board, there was a historic consumptive use ² above and below the divide equal to 3,117 acre-feet of water. This figure was reached by determining the total amount of intensively and less intensively irrigated acreage, and then applying the Burman consumptive-use figure of 0.969 acre-feet per acre, ³ with downward adjustments for the less intensively irrigated acreage. For the purpose of considering a transfer of irrigation water rights, "consumptive use" was defined by the Board, in Conclusion of Law No. 6, as

"the amount of irrigation water, exclusive of effective precipitation, stored soil moisture, or ground water that is consumed by the crop."

The amount of water consumptively used was found to be Basin's maximum seasonal entitlement. Basin claims that this amount (3,117 acre-feet) should be increased by the return flows below the topographic divide which enter the Long Lake closed basin which it calculates would be an additional 2,215 acre-feet of water. ⁴ Basin makes this claim on the two-pronged theory that this amount was a necessary part of the irrigation of lands in the Long Lake closed basin and was historically lost to the Laramie River system.

On the other hand, the Board concluded as a matter of fact that these closed-basin return flows had not been "beneficially, consumptively used" ⁵ below the topographic

divide and could not be transferred, regardless of whether or not they return to the Laramie River system.

CONSTRUCTION OF § 41-3-104

Section 41-3-104, (fn. 1, supra) provides that when a change in use, or change in place of use of water is applied for, certain factors must be considered by the Board. These considerations are:

(a) The amount of water historically diverted under the existing use.

(b) The historic rate of diversion under the existing use.

(c) The historic amount consumptively used under the existing use.

(d) The historic amount of return flow.

The statute thus provides that the quantity of water transferred shall not affect the quantities of water contemplated by these factors

"nor in any manner injure other existing lawful appropriators."

Basin's interpretation of the statute would lead to the conclusion that each of the above four limitations modify the general prohibition of injury to other appropriators. In other words argues Basin factors "a," "b," "c," and "d" above are irrelevant to a change-of-use application unless it can be shown that other appropriators are injured by the effect of one or more of them. According to this reasoning, it follows that since the closed-basin return flows do not return to the Laramie River, there is, therefore, no injury to other appropriators if more than the "historic amount" of water "consumptively used under the existing use" below the divide is transferred. (The quotes are from § 41-3-104.) Since this is so says Basin the statute is not offended by the seller-appropriator's transfer of the entire appropriation, regardless of what the facts show the historical-use factor to be.

On the other hand, other interested water users, together with the Board, contend that the statute imposes separate and independent restrictions on the amount of water which can be transferred regardless of the existence of injury to other appropriators.

The Wyoming change-in-use statute, admittedly ambiguous, is unique to western water law, although its principles are not new or unfamiliar. The divergent contentions of the parties are themselves evidence of the ambiguity which characterizes § 41-3-104, supra. Since the statute is ambiguous, it falls to us to construe it, and in so doing we must view the language used by the framers in light of the purposes they intended to accomplish. Wyoming State Treasurer ex rel. Worker's Compensation Division v. Svoboda, Wyo., 573 P.2d 417, 420; Frank v. City of Cody, Wyo., 572 P.2d 1106, 1115; Seyfang v. Board of Trustees of Washakie County School Dist. No. 1, Wyo., 563 P.2d 1376, 1380; and Hoffmeister v. McIntosh, Wyo., 361 P.2d 678, 679, reh. den.364 P.2d 823.

While the legislative declaration of intent and purpose is not binding upon us, it is, nevertheless, worthy of consideration as an aid to construction. Wyoming State Treasurer ex rel. Workmen's Compensation Dept. v. Niezwaag, Wyo., 452 P.2d 214; and McFarland v. City of Cheyenne, 48 Wyo. 86, 42 P.2d 413. The title to § 41-3-104, supra, as originally enacted, provided:

"AN ACT to create Section 41-4-1 of the statutes relating to procedure to change use or place of use of water right; and providing only historic amount of water used or diverted under the right may be transferred." (Emphasis supplied) Session Laws of Wyoming, 1973, ch. 170.

The announced purpose, then of § 41-3-104 was to provide a procedure for those wishing to change a water right, and to place limitations on the amount of water which could be transferred. Basin argues with this, urging that the only purpose of the statute was to embrace what Basin interprets to be the basic premise laid down by ...